Wells v. Board of Commissioners

68 S.E. 212, 152 N.C. 663, 1910 N.C. LEXIS 342

• Court: Supreme Court of North Carolina
• Decided: May 27, 1910
• Status: Published

Opinion

Brown, J.

As we construe the act to improve the public roads in Yalleytown Township in Cherokee County, ch. 210, Laws 1905, this proceeding cannot be maintained.

We agree with his Honor that the mandamus is sought to enforce a money demand, but in our opinion it is not a money demand payable from the general funds of Cherokee County, and a mandamus will not lie against its board of commissioners to compel payment.

The aforesaid act created a body corporate under the name of the Highway Commission of Yalleytown Township and gave to such commission complete jurisdiction' over the roads of that township, including the laying out of new roads as well as the repair and maintenance of all roads. The act provides for the election of commissioners by the justices of the peace of the township and also for the appointment of a secretary and treasurer.

It also provides that all road taxes for Yalleytown Township in the hands of the sheriff be paid over to such treasurer, and that all moneys arising from taxes in that township levied for road purposes be kept separate, to be expended upon the roads of the township. Section 4 of the act provides: “The treasurer of said highway commission shall make payments out of the road funds belonging to said township only upon the written order signed by the president and secretary of the commission.”

It is contended that by section 2685 of the Revisal of 1905 the damages assessed on account of laying out public roads are deemed and made a county charge. That is true under the general road law, but Yalleytown Township has a road law of its own, which exempts it from the general road law of the State.

Under that law the remedy of petitioners is to be had by proceedings against that corporate body and treasurer thereof.

Petition dismissed.